The California Marriage Initiative and the California Supreme Court’s Marriage Decision

By a provocative confluence of timing, the California Supreme Court issued its May 15 decision finding that the state must allow same-sex couples the same access to legal marriage as it affords to different-sex couples at the same time that the office of Attorney General Edmund G. "Jerry" Brown was scrutinizing petitions submitted by two organizations in support of an initiative to amend the California Constitution to add the following provision: "Only marriage between a man and a woman is valid or recognized in California." The AG’s office is expected to rule on whether sufficient valid signatures were submitted to qualify this measure for the ballot by mid-June, around the same time that the Supreme Court’s decision is expected to take effect.

This raises many significant questions.

For one thing, language identical to the proposed 2008 initiative was enacted by California voters in 2000 as Proposition 22, but in the form of a statute. It gained the support of 61% of the voters that year, and was codified as Family Code Section 308.5, part of the portion of the Family Code concerned with the recognition of marriages performed in other jurisdictions. As a statute enacted through initiative, it could not be amended or repealed by the normal legislative process; only another voter initiative could remove it from the books. As such, it stood as a barrier to the legislature’s attempt in 2005 and 2007 to enact new statutory provisions opening up access to marriage for same-sex couples. State legislator Mark Leno, the leading proponent of the statutes on marriage for same-sex partners, persuaded the legislature to give Section 308.5 a limited reading – that is, to confine its application consistent with its placement in the Family Code to the issue of recognition of foreign marriages, and thus to construe it as not presenting any barrier to Leno’s marriage bills. But Governor Arnold Schwarzenegger disagreed, finding that the state’s voters had approved language that clearly prohibited the recognition of same-sex marriages in the state regardless where they were performed, and vetoed the two marriage bills, observing that the question whether same-sex couples could marry was pending in the judicial forum.

Now the Supreme Court has spoken, declaring Section 308.5 to be a violation of state constitutional provisions guaranteeing due process, privacy and equal protection of the laws. That is, it is unconstitutional as a statute. Having stricken it from the books, together with a provision enacted by the legislature in 1977 limiting access to marriage to different-sex couples, the court renders the state’s Family Code gender neutral for purposes of access to marriage, with the interpretive gloss that same-sex couples have rights equal to different sex couples in accessing the marital institution created by state law.

But what about the pending initiative? First of all, it seems clear as a matter of the nature and structure of constitutions vis-a-vis statutes that if the initiative passes in November, placing the identical language in the Constitution, it would be logically beyond the reach of state constitutional attack. That is, the California Supreme Court could not strike it from the constitution on the argument that it conflicts with other constitutional provisions, since it would be seen as amending those provisions to create an exception. This does not mean, however, that the state constitutional amendment would be impervious to attack in the judicial forum. State constitutions may be challenged to the extent that they violate rights guaranteed by the federal constitution.

Exhibit A for this proposition is Romer v. Evans, the U.S. Supreme Court’s 1996 decision striking down Colorado Amendment 2. Amendment 2, adopted by initiative, essentially provided that the state of Colorado was prohibited from adopting policies that would treat gay people as a protected class under state law, and had the immediate effect of rendering ineffective various municipal ordinances and state policies banning discrimination on the basis of sexual orientation. It was immediately challenged in the state courts as a violation of federal constitutional rights. The state courts stayed the operation of Amendment 2 pending the litigation, then declared the measure unconstitutional. The U.S. Supreme Court affirmed this result, adopting a different theoretical route from the Colorado courts. The salience of Romer for this discussion is that state constitutional provisions may not violate rights guaranteed by the 14^th Amendment of the U.S. Constitution.

So the question is whether the California so-called "Protection of Marriage Amendment" could be found to violate the 14^th Amendment. This would be a question of first impression for the Supreme Court, but not for lower federal courts, some of which have considered it, at least obliquely, in connection with challenges to the Federal Defense of Marriage Act. So far, there have been a handful of scattered attempts by individual ligitants to bring the constitutionality of DOMA directly into question, and they have all failed. On the more direct question whether states can amend their constitutions to prohibit the legal recognition of same-sex partners, the most important failure has been in Nebraska, where initial success in challenging a more wide-ranging state constitutional amendment on equal protection grouns was reversed by the 8^th Circuit.

In his dissent in Lawrence v. Texas, Justice Antonin Scalia suggested, contrary to the disclaimers in Justice Anthony Kennedy’s opinion for the Court, that the underlining doctrinal logic of the majority’s ruling would undermine the right of states to deny the right to marry to same-sex couples. Scalia suggested that as the Court mentioned the right to marry as one of those liberties protected by the Due Process Clause and had ruled out moral preferences as a justification for denying such a right, there remained little in the way of justification. In her concurring opinion, Justice Sandra Day O’Connor disputed this assertion, suggesting that there could be other rational grounds for a state deciding to provide marriage for different-sex couples but not for same-sex couples. But the issue was not joined in that case, for the simple reason that marriage was not on the table, only the validity of laws against consensual private non-commercial adult sodomy.

Was Scalia correct? Lower courts have with little exception disagreed with him. The phrase "with all due respect to Justice Scalia" appearing with some frequency, courts in many states have treated his comments as hyperbolic. On the other hand, both the Massachusetts Supreme Judicial Court and the California Supreme Court invoked various rhetorical flourishes from Kennedy’s Lawrence opinion in the course of their holdings, even though the federal constitutional claim was not pending before them. (Both cases rested solely on state constitutional claims.)

Confronting the question of the federal constitutional validity of the California amendment initiative might confront the U.S. Supreme Court with the question it evaded in Romer and Lawrence, but which the California Supreme Court embraced this past week: whether sexual orientation should be considered a "suspect classification" for purposes of Equal Protection analysis. Or the Court, bearing in mind the potential impact on pending challenges to the military exclusion of openly gay people, might yet evade the question by finding that, as Justice Scalia suggested, there is no rational basis for excluding gay people from the right to marry their preferred same-sex partners. If the Court finds there is a rational basis, however, it would then be duty-bound to confront the suspect classification issue unless it also accepted the California Supreme Court’s framing of the due process/privacy issue, in which case it could subject the initiative amendment to strict scrutiny on the ground that it discriminated with respect to a fundamental right. And I think there is general agreement that the initiative would probably be stricken if subjected to strict scrutiny, on the ground that the state lacks a compelling interest, having extended all the legal rights and responsibilities of marriage to same-sex couples, to avoid the last step of allowing the use of the term "marriage." Although we have to remember that the California Supreme Court’s take on this part of the analysis would be merely persuasive, not binding, on the U.S. Supreme Court in a 14^th Amendment context, nonetheless, the opinion may be very persuasive due to the strength of its reasoning.

The other pressing question is that of a "stay." If, almost simultaneously, the AG determines there are enough signatures for the initiative to go on the ballot, and the California courts are asked to stay the marriage ruling pending the vote on the initiative, are there sufficient grounds for the California courts to stay their hand on marriage until the voters have had another chance to weigh in?  The California Supreme Court has actually address an analogous issue before, in 2004, when it upheld an emergency restraint against the city of San Francisco continuing to grant marriage licenses while litigation was pending challenging the city’s authority to do so. The analogy is not complete, but some of the arguments would be the same. Any marriages between same-sex couples contracted in California between the decision going into effect and the vote would have a certain cloud on them because of the uncertainty whether the initiative would pass and then whether it would be upheld against constitutional challenges. On the other hand, the argument that there would be any sort of confusion about the validity of those marriages in California if the initiative passes strikes me as strained. The language of the initiative is clear. If it passes, those marriages would not be "recognized or valid" in California.  There is a big difference, of course, between the two situations: in the case of the 2004 San Francisco marriages, it was entirely speculative that those marriages would be found to have any validity; on the other hand, in the current situation, we now know as a matter of definitive ruling by the court that under the current California Constitution same sex couples have a right to marry, and the harm to them of delaying implementation of the decision on the chance that an initiative might pass seems to outweigh any inconvenience that might attend to the passage of the initiative after several thousand same-sex partners from California and elsewhere have tied the knot.

But here’s an interesting thought experiment. Earlier this year an intermediate appellate court in New York State ruled that New York’s principles of marriage recognition dictated that a community college in Monroe County must recognize a same-sex marriage contracted in Canada between one of its employees and her partner for purposes of its personnel policies. A premature attempt to appeal that ruling before the trial court could enter a final remedial order in the case was recently rebuffed by the state’s highest court, the Court of Appeals. No other department of the state’s intermediate appellate division has spoken to the matter yet, which means the ruling from Rochester is for now a state-wide precedent binding on the trial courts throughout New York State. It seems inevitable that the case will be appealed, but it also seems likely that the Court of Appeals would uphold the ruling. Certainly, it was consistent with an opinion issued by the former Attorney General back in 2004 when the question arose concerning recognition of same-sex marriages from Massachusetts. Now, suppose same-sex couples from New York go to California to marry this summer, return home, and seek recognition of their marriages here in New York consistent with the current state of law. Then hypothesize that the California initiative passes. What is the status of those marriages? They would be neither "recognized nor valid in California," under the wording of the amendment, but would they remain valid in New York, considering that they were valid at the place and time that they were performed, which is the usual test for recognition of an out-of-state marriage, and that the amendment, by its own terms, says only that such marriages would not be recognized or valid IN CALIFORNIA? This has the makings of a dandy law school exam question. . . Ha!

I make no suggestion about whether the initiative is likely to pass in California. I’m a law professor, not a political pundit.

Comments

[Jeff]

I was thinking about that last point too! Quite a conundrum if New York recognizes California marriages that later become invalidated.

As to how the U.S. Supreme Court would handle the marriage initiative: I can't see Scalia, Thomas, Roberts or Alito voting to use strict scrutiny or to overturn the initiative. Kennedy wrote Romer and Lawrence, so maybe he'd be on our side. But I worry that even if we got a favorable U.S. Supreme Court opinion, it would give impetus to the FMA.

I hate addressing the issue from the perspective of fear -- it's not very empowering. It's just that based on the way things have gone state by state, I'm not optimistic.

[Art Leonard]

I made a few slight revisions to the original version of the post, after the prior comment offered by Jeff, but did not change any substance - just correcting some typos and clarifying some points.

I am hopeful that time is on our side. That is, as in Massachusetts, after the decision goes into effect and people start marrying, that generates a status quo, and many Californians who might not opt to support same-sex marriages in the first instances could be swayed to the point that once people have been allowed to marry, their status should not be taken away from them.

There are questions about whether the marriage amendment, in its bare-bones form, has retroactive effect. I think the wording suggests that it would apply to render void those same-sex marriages contracted before the initiative's passage, but the meaning of a constitutional amendment, no matter how "clear" the language appears, can't be confidently expounded until the authoritative expositor - the state's highest court - has spoken to the matter.

I think the chances of a federal amendment grow smaller, not larger, as a result of this decision, once again because I think time is on our side, and, more importantly, because I think it is likely that Democratic margins will grow as a result of November's election in both houses of Congress, making it less likely that a proposed amendment could win sufficient support to be sent out to the states for ratification. Indeed, repeal of DOMA may well be on the agenda of a new administration at a relatively early point, depending on the world and local situation when a new adminstration takes office - and of course depending on its being a Democratic administration.

[Gil]

tks Professor ... I find it surprising that marriages performed between June and November could be nullified if the amendment passes ... it strikes me as odd, because suppose the amendment doesn't pass now, but in 10 years they try again and it somehow passes. That would mean that 100's of thousands of marriages (10 years!) would be dissolved out of the blue? it seems non-sensical. The marriages were perfectly legal at the time they were performed, so I don't understand how they could be nullified ... anyone care to elaborate?

Does anybody know of any precedents where voter-approved amendments were applied retroactively?

[Art Leonard]

This is just my interpretation, based on the language of the proposed amendment. It is possible that the California Supreme Court, or the US Supreme Court, would find that retroactive application is a violation of due process under the 14th Amendment.

I agree that the idea that years later such an amendment could pass and an enormous number of marriages would suddenly have no further legal status seems odd. I am not saying that the amendment applies retroactively, however. I am saying that a literal application of its terms would mean that the marriages were valid when they were contracted and remained valid until the day the amendment went into effect, then would be invalid from that date forward. I agree that the result would be quite a few complications. For example, say a couple married July 1, the amendment was passed and took effect immediately in November, then the following July the couple decided they wanted to divorce. Well, you have to be married to get a divorce, and although the marriage was valid when contracted, it is not valid at the time a divorce is sought.

Of course, if the marriages were then considered to be domestic partnerships, it could be dissolved as authorized under the DP law.

But certainly there will be many such questions to be decided by the courts if marriages are allowed from mid-June through election day and then the amendment passes. Does that mean that the court's decision should be stayed until the election? That's also for the courts to say, if a party with standing to seek a stay requests one. There is a valid argument to be made that neither Liberty Counsel nor Alliance Defense Fund has standing to seek a stay, because the court ruled that they no longer had standing to be parties in the case once its prior decision was issued invalidating the 2004 San Francisco marriages.... So attention must turn to Gov. Schwarzenegger and A.G. Brown, who are the remaining parties in the case for purposes of deciding whether to seek a stay of the ruling....

[Zoe Brain]

Another vexed question - what is the definition of man and woman at law?

I'm Intersexed. I have dual nationality. In my country of birth, the UK, I'm deemed male for the purposes of marriage law. In Australia, where I live, I'm deemed female. They use different definitions, one based on historical documentation, the other based on medical reality (and the latter is not a straightforward question by any means).

Simple chromosomal definitions as used in Florida mean that some women who have given birth are deemed male. Others with both sets of chromosomes are a legal nullity, as are those with 47xxy rather than 46xx or 46xy genes.

The problems are similar to the ones formerly found in laws against mixed-race marriages, where race itself had no clear legal definition.

[Art Leonard]

Well, this just illustrates the kinds of problems that are generated when "home-made" constitutional amendments are proposed through an initiative process. The alternative, in California, is for amendments to be proposed by the legislature, through a process that involves staff study and public hearings at which questions of this sort can be raised. When private groups propose amendments, there is no vetting of any sort, and it is left to the courts to puzzle out meaning if the thing passes.

As my posting shows, the courts will have to grapple with issues of retroactivity, and as your posting shows, the courts will also have to grapple with the meaning of "man" and "woman" in situations involving intersexuality and transsexuality.

[Mad Professah]

1) I think it is very likely the bad guys will appeal the decision to get a 90-day delay in the decision going to effect instead of a 30-day delay, so marriages will not be happening until mid-August not gay pride month of mid-June

2) I think it is completely possible (and reasonably likely) that the CA Supreme Court would rule (regardless of when a constitutional amendment declaring marriages between a man and woman the only valid and recognized marriages in california, be it November 2008 or November 2012) that although those marriages were legal at the time, they are no longer legal after certification of the amendments by the secretary of state.
3) Point #2 brings up Federal constitutional problems that I am not sanguine the USSC would rule in our favor, anytime soon.
4) They couldn't get an FMA through a R-controlled Congress, they won't get an FMA with Pelosi as Speaker.

[Art Leonard]

I'm not sure how the "bad guys" can appeal this decision. It is a final ruling on the merits by the state's supreme court, premised entirely on state constitutional law. There are no grounds for appeal to the U.S. Supreme Court, because the case involves no federal question, either constitutional or statutory. And I'm not sure where your 90 day figure comes from.

I know there was an article in the LA Times the other day suggesting that the "bad guys" could file a petition for rehearing that could delay implementation up to 90 days. But I think that's erroneous. I checked the court's rules, on line, and there is no mention of any 90 day delay. In fact, quite the opposite. A motion for rehearing must be filed within the 30 day period after the opinion was released, and if the court does not grant the motion by the end of the 30 day period, it is effectively denied.

So the only way the "bad guys" can get the implementation delayed is by seeking a discretionary stay from the court, arguing that allowing the decision to go into effect while the initiative vote is pending is likely to create confusion and generate lawsuits after the fact concerning the status of marriages performed during the interim. The court has the authority to stay its holding. If one assumes that the partial dissenters would vote for the stay, the question would be whether one of the justices in the majority would break loose over this question and join them to prevent marriages from taking place until the voters have spoken on the initiative.

My own view is that there are no good grounds for a stay, but I'll confess to being totally biased on the question, and not a close student of the court's stay rulings in analogous situations, if there are any on the record to study.

[Mark]

Jeff:

Time is on our side as younger people now overwhelmingly favor gay marriage. The long term trend, at least, is positive.